Last edited: November 08, 2003

The Gay-Rights Movement Has Seized the Nation’s Attention and Agenda. Can It Hold Them?

Boston Globe, August 3, 2003
Box 2378, Boston, MA 02107
Fax: 617-929-2098

By Laura Secor

On June 26, when the US Supreme Court struck down anti-sodomy legislation across the country in Lawrence v. Texas, it did something else nearly as momentous: It acknowledged and legitimated a shift in public attitudes toward gay rights. Supreme Court justices, like the public at large, were ready to think about gay sex without blushing. Says Sue Hyde, a Cambridge-based activist with the National Gay and Lesbian Task Force, “To me the subtext was, ‘This just doesn’t freak us out anymore.’ The court could bring legal analysis to bear on this issue, instead of the ick factor.”

The “ick factor” may have loomed large in Bowers v. Hardwick, the 1986 decision that Lawrence overturned—the one in which the Supreme Court upheld sodomy laws, compared gay sex to adultery and incest, and cited the “ancient roots” of bans on same-sex relations.

But 17 years later, the Supreme Court has made a strong, even compassionate statement about the two gay male petitioners in Lawrence: “The State cannot demean their lives or control their destiny by making their private sexual conduct a crime.”

How did we get from Bowers to here? And is the march toward full gay civil rights now inexorable, or are we on the brink of a powerful conservative backlash? Polls have shown a growing acceptance of gay causes by the public over the course of the past decade. But even as gay activists debate the movement’s next round of priorities, from marriage rights to employment discrimination, a new Gallup poll suggests that popular attitudes remain volatile: The percentage of Americans who believe that homosexual relations should be legal dropped from 60 percent in May to 48 percent in the weeks just after the Lawrence decision.

Public opinion polling is an inexact science. But if the Gallup figures are even close to the truth, they suggest that a pitched battle lies ahead.

“I think the vigor and the strength of the backlash reflects the profundity of the social change we are about to see happen,” says Hyde, who is undaunted by the president’s condemnation of same-sex marriage in a Rose Garden speech this week. “This is the big conversation we’ve been waiting for since Stonewall in 1969. As President Bush has said, ‘Bring it on.”’

The day the court handed down the Bowers decision was a dark one for the gay and lesbian civil rights movement. By criminalizing the very conduct that defined homosexuality, the court seemed to leave little legal recourse for combating anti-gay discrimination. But if gays could not win legal protection for their sexual conduct, they could still—following a venerable American tradition—define themselves as an identity group and seek equal recognition not for what they did, but for who they were.

Bowers hit at the height of the AIDS epidemic, at a time when activists were assembling a broad coalition of gay men, lesbians, and straight people to demand a policy response to a critical public health issue. AIDS had also forced many infected gay men to come out of the closet. Their suffering added a dimension of moral urgency to the movement’s exhortation that all gays and lesbians-from the streets of Greenwich Village to the corporate boardroom to the trailer park—come out and show their solidarity with a larger group. The slogan “Silence=Death,” later adopted by the radical group ACT-UP, first appeared in New York City in 1987.

After Bowers and in light of AIDS, recounted the Fordham law professor Sonia Katyal in a 1997 article in the Yale Journal of Law and Feminism, gay-rights advocates increasingly attempted to define homosexuality as something like ethnic identity—fixed and unalterable, not chosen but given. Flags, neighborhoods, and bars were the markers of culture and territory.

At the same time, some within the movement, especially in academic quarters, began to challenge the notion of fixed sexual identity, arguing that in fact sexuality and even gender were social inventions, and that this insight was precisely the gift the “queer” community had to offer American culture. Martin Duberman, a historian at the City University of New York Graduate Center and a veteran activist, understands the political expediency of gay identity politics, but he also laments it: “How much more revolutionary is the counter-notion, that everybody’s sexual identity is fluid?”

More pragmatic issues preoccupied the movement’s activist wing. Following Bowers, conservative state legislators in Georgia, Texas, and elsewhere blocked AIDS prevention campaigns that included safe-sex education on the grounds that they encouraged illegal sodomy. The Reagan administration, taking the same position, would not support prevention efforts that advised condom use. Under these circumstances, the repeal of sodomy laws became an urgent concern for the movement.

Immediately after Bowers, the National Gay and Lesbian Task Force appointed Sue Hyde to head its Privacy Project, aimed at repealing or reforming sodomy laws in the 25 states where they existed as well as fighting new ones. When state legislators in New Hampshire attempted to introduce a sodomy law in 1987, activists got public health advocates, the state’s psychological association, and mainline Protestant religious leaders to testify alongside them at the committee hearing. The bill was rejected by the committee before it could be introduced into the legislature. Hyde conjectures that this example stopped other state legislatures from considering similar measures.

By 2003, 12 of the 25 states had eliminated their sodomy laws. But only two of those states did so through their legislatures. Despite the discouraging federal precedent of Bowers, activists won a series of favorable court decisions at the state level.

The 1990s visited some disappointments on the gay-rights movement alongside these successes. The first and most crushing blow was President Clinton’s failure to lift the ban on gays in the military in 1993. Then came the 1996 Defense of Marriage Act, which foreclosed federal recognition of same-sex marriage and released states from any obligation to recognize same-sex marriage licenses from outside their borders. Thirty-six states and the District of Columbia adopted similar legislation, as the right countered the gay-rights movement’s grass-roots tactics with some grass-roots action of its own. [sic The locally elected government of the District of Columbia has never enacted any anti-gay legislation. -Bob] 

Chai Feldblum, a Georgetown University law professor and the director of Georgetown’s Federal Legislation Clinic, was a member of the Clinton transition team at the Department of Justice. Pushing for lifting the military ban straight away was “an example of not being strategically smart,” reflects Feldblum, who cautioned against moving too quickly at the time. Conservatives responded by slipping a clause into the Family and Medical Leave Act prohibiting the lifting of the ban by executive order. In the end, the government adopted the policy of “Don’t Ask, Don’t Tell”—a compromise that satisfied no one. Craig Rimmerman, a political scientist at Hobart and William Smith Colleges and the author of “From Identity to Politics: The Lesbian and Gay Movements in the United States” (2001), maintains that the policy only “reinforced the horrors of the closet.”

Since that time, the gay-rights movement has grown increasingly organized, professional, and savvy. Like most successful social movements in this country—the Christian right and the civil rights movement come to mind—the gay-rights movement concentrates its resources at the state and local level, recognizing that federal policy may be the last to change. Among its largest and most influential organizations are the Human Rights Campaign, Washington’s premier gay lobbyist group, whose Political Action Committee supports candidates friendly to the movement’s goals; Lambda Legal, which pursues gay civil rights largely through the courts; and the National Gay and Lesbian Task Force, which builds networks of activists at the state and local levels in order to press for action in state legislatures.

At the moment, same-sex marriage is the most high-profile, and potentially polarizing, gay-rights issue on the nation’s political agenda. Rimmerman worries that it’s the wrong issue at the wrong time. “Marriage is such a conservative social institution,” he says. “I truly expect the Christian right to organize vociferously to block this.” (The Vatican, in a document issued last week, has already urged Roman Catholic legislators to do so.) The worst-case scenario would be an anti-gay groundswell, in the courts as well as in politics and culture, on the order of the antiabortion movement—with the added worry that public support for gay rights is weaker than public support for the right to choose.

Should gay activists be wary of that prospect? No, says Winnie Stachelberg, political director of Human Rights Campaign: “The backlash is there whether we do anything or not.”

Nonetheless, Stachelberg and Rimmerman agree, there are other pressing issues that require the movement’s attention. AIDS treatment and medications remain prohibitively expensive for many sufferers; AIDS prevention education is not federally mandated; and HIV researchers still need funding. Then there is the achievement of tax equity for domestic partners; the passage of hate-crimes legislation; and the prohibition of employment discrimination. Notes Stachelberg, “It’s still legal in 36 states in this country to fire somebody for being gay or lesbian or for being perceived to be gay or lesbian.”

This last area may be where Lawrence matters most. Federal legislation to ban discrimination by sexual orientation in the workplace failed to pass the Senate by just one vote in 1996. Feldblum, who also helped draft the Americans with Disabilities Act, recalls that gay-rights advocates originally drafted a more ambitious bill in 1993 barring discrimination in housing, public accommodations, and government services as well as employment. The gays in the military setback prompted advocates to restrain the bill’s ambitions. After Lawrence, however, the cornerstone of legal discrimination against gays and lesbians—the notion that they are unconvicted felons—has been removed, and Feldblum suggests that the time may be right to begin resuscitating the omnibus bill.

Lawrence has left many gay activists euphoric and expectant, though few know yet what doors it will open.

“I don’t think that just because Lawrence was issued, every gay person has been released from the chains of oppression,” says Hyde. “But every governmental agency has been put on notice that you have to leave these people alone and let them lead their lives.” Rimmerman agrees: “It’s a benchmark for other political institutions down the road.”

To Feldblum, the fundamental goal of the gay-rights movement must be to remove the moral stigma attached to non-heterosexual lives. Real change will come when the public recognizes gay love not just as morally neutral, she argues, but as morally good, to the same extent that straight love is good.

“We’re not quite there yet, but we could get there in five years,” says Feldblum cheerfully. “That’s the huge difference Lawrence makes: It’s no longer 50 years away but five years away.”

  • Laura Secor is the staff writer for Ideas.

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